) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 4367

CITATION : R. v. Marku, 2013 ONSC 4367 COURT FILE NO.: 11-6613 DATE: 2013/06/27 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – VLADIMIR MARKU Appellant ) ) ) ) ) ) ) ) Moiz Karimjee, for the Respondent Nigel Marshman, for the Appellant ) ) HEARD: 2013/04/27 Justice Patrick Smith [ 1 ] On July 27, 2012 the appellant, Vladimir Marku was convicted of assaulting his wife, Angelica Marku, contrary to s. 266 of the Criminal Code .

On July 30, 2013 he was sentenced to a conditional discharge and a period of twelve months of probation. [ 2 ] This is an appeal against conviction based upon three grounds set out in the Notice of Appeal alleging that the trial judge: 1. rendered a verdict that was unreasonable and unsupported by the evidence; 2. erred in law by dismissing the evidence of Mrs. Marku; and 3. such further and other grounds as may apply. [ 3 ] The appellant later raised four additional grounds of appeal in his factum, namely: 1. that the learned trial judge erred in law by dismissing the evidence of Mr.

Marku on the basis of improper judicial notice; 2. that the learned trial judge erred in law by misapprehending material and essential parts of the evidence; 3. that the learned trial judge rendered an unreasonable verdict based on several misapprehensions of the evidence and the general inability of the remaining evidence to support a verdict of guilt; and 4. that the learned trial judge erred in law by failing to give coherent reasons for not accepting Mrs. Marku's evidence as raising a reasonable doubt.

Factual Overview [ 4 ] I do not intend to review the entirety of the evidence but rather to provide a brief overview sufficient to provide context to my reasons. [ 5 ] Raymond Villeneuve testified that while in the back seat of his father's van parked on Bank and Cooper Streets in Ottawa, he witnessed a female being pulled into a Toyota Camry by a male. His father followed as the vehicle drove down Cooper Street to O'Connor Street and then onto Highway 417.

Before entering the highway he testified that he saw the driver strike the passenger once while on Cooper Street and later, in reply, that he saw hitting her before the woman was pulled into the car. [ 6 ] While the Toyota Camry was driving east on Highway 417, Mr.

Villeneuve stated that his father was following at a distance of three car lengths at speeds of 140 to 160 kilometers per hour and that he saw the "gentleman in the driver's seat punched her three times with a closed fist to the left side of her face with his right hand…and he was also pushing her head up against the passenger window three or four times" [Transcript, Volume 1, p. 7 and 8]. He also observed the passenger door open slightly and then quickly close.

[7] On cross examination, Mr. Villeneuve stated that he was certain that what he witnessed was punching to the head of thefemale passenger, "I saw the contact. During my career as at Corrections when you see a hit to the head, you actually see the headphysically jolt to the side and it's not - it wasn't a bobbing or try to dodge the hit itself - it was the actual connection" [Transcript, Volume1, p.18]. [8] Jessica Latreille was also a passenger in the van with Mr. Villeneuve. She testified that she heard a woman calling for helpwhile entering Tim Horton's on Bank Street.

When she came out of the donut shop she stated that she noticed a white Camry and againheard someone call for help from inside the vehicle. As her vehicle followed the Camry she testified that she had a clear view of the twooccupants and while on Cooper Street she saw the male driver punch the female passenger, "[s]he was sitting upwards in her vehicle andlike I guess the gentleman like punched her" [Transcript, Volume 1, p. 29].

While on O'Connor Street she stated that she observed thefemale passenger trying to open the door "…but the door becomes shut as the male driver is - like had grabbed her and pushed her in -like the back in the vehicle", apparently grabbing her left arm [Transcript, Volume 1, p. 31]. On Highway 417 she testified that she sawthe passenger door open and shut briefly before the Camry exited onto St. Laurent Boulevard stating: "I saw his, I guess, right hand goahead and like make a swing at her" [Transcript, Volume 1, p. 31 & 32]. [9] Mark MacMillan is a member of the Ottawa Police Force.

His evidence was that he observed the Camry travelling south ofSt. Laurent Street and saw the driver lean over to the passenger side of the vehicle and the vehicle swerve to the right almost striking thecurb. When he approached the vehicle he noticed the female passenger was crying with redness under her eyes. [10] Constable Tara Anderson is also a member of the Ottawa Police Force and testified that she saw the complainant, AngelicaMarku, in the lobby of the police station at 9 p.m. when she arrived with food for her husband. She observed that Mrs.

Marku was upset,crying and that her left cheek was slightly swollen. [11] The appellant testified and denied hitting his wife. He stated his wife became emotionally distraught when she received a callfrom her family in the Philippines concerning her children who resided there. [12] He testified that, while driving on Highway 417, he noticed his wife open the car door once or twice and testified that, "Ireach over the door and I close the door and I lock it" [Transcript, Volume 1, p. 63]. [13] Continuing on Highway 417, Mr.

Marku recalled that he told his wife to get off of the phone whereupon he grabbed it out ofher hand, placed it in front of her feet but later said that he threw the phone down explaining that every time his wife received a call fromthe Philippines she became upset and hysterical. [14] Exiting Highway 417, and while on St. Laurent Boulevard travelling at 50 kilometers per hour, he once again noticed thepassenger door open and reached over to try to close it. He stopped in the parking lot of a restaurant where he was arrested by ConstableMacMillan. [15] The defense called Angelica Marku as their witness.

Her testimony was that her husband did not hit or strike her. She statedthat she received a disturbing call from her brother in the Philippines advising that her two children were in the hospital causing her tobecome very upset. She stated that, while driving on the highway and on St Laurent Boulevard, she attempted to exit the car twice andopened the passenger door. When asked why she wanted to get out of the car she stated "[b]ecause I want to cry and cry" [Transcript,Volume 1, p. 108].

Later during cross examination she was asked why she would attempt to exit a car in dangerous circumstances, sheanswered that she "wanted to get out of the car for a while", to "scare him", and to "stay away from him' [Transcript, Volume 1, p.123,125-126]. Legal Framework for

Summary Conviction Appeals [16] Section 686(1)(

a) of the Criminal Code provides that, on the hearing of an appeal against conviction, the Court of Appealmay allow the appeal where it is of the opinion that: (

a) the verdict should be set aside on the ground that this is unreasonable or cannot be supported by the evidence; (

b) the judgment of the trial court should be set aside on the ground on a question of law; or (

c) any ground that there was a miscarriage of justice. [17] If the verdict is unreasonable or there is an error of law alone the appeal will be successful unless the Crown is able todemonstrate that, pursuant to s. 686(1)(b)(iii) that "no substantial wrong or miscarriage of justice has occurred". [18] Where an appellant asserts that a verdict is unreasonable, the role of the appellate court is to determine whether on the factsthat were before the trial judge, a jury properly instructed and acting reasonably could convict: R. v S.(P.L.) (SCC),[1991], 1 S.C.R. 909. [19] Section 686(1)(

a) of the Criminal Code allows an appellate court to review the evidence but only for the purpose ofdetermining if it is reasonably capable of supporting the trial judge's conclusion and assessing whether the trier of fact could reasonablyhave reached the conclusion that it did on the evidence before it. The Supreme Court in R. v.

Burns, (SCC), [1994] 1S.C.R. 656, stated in para. 14 that once the above threshold has been met, "the Court of Appeal is not to substitute its view for that of thetrial judge, nor permit doubts it may have to persuade it to order a new trial". [20] Generally, considerable deference is afforded to the findings of the trier of fact, as stated in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, by Arbour J. at para. 24: [t]riers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be

drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree.

A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned . [ 21 ] With respect to findings of credibility, the words of Rothman J. provided in R. v. Chevrier (1992), 81 C.C.C. (3d) 418 (Qc. C.A.), at para. 42 is a helpful guide to courts of appeal: …credibility is, of course, a question of fact and it cannot be determined by fixed rules.

Ultimately, it is a matter that must be left to the common sense of the trier of fact…Unless the record reveals an error of law or in principle or a clear and manifest error in the appreciation of the evidence, a court of appeal should not intervene in that determination. Is the Verdict Unreasonable or Cannot be Supported by the Evidence [ 22 ] The evidence of Raymond Villeneuve was clear and unequivocal that, "the gentlemen in the driver's seat punched her three times closed fist to the left side of her face with his right hand" [Transcript, Volume 1, p.8]. [ 23 ] When cross examined, Mr.

Villeneuve emphatically stated that what he observed was not the appellant reaching over his wife to close the car door but that he saw the contact and observed Mrs. Marku's head move to the right after being struck. [ 24 ] The witness, Jessica Latreille, also testified that she heard a scream for help from inside the appellant's vehicle, and saw a man grabbing a woman and pulling her into the vehicle. Then later she stated that she witnessed the driver punching her. [ 25 ] Finally, Officer Tara Anderson testified that she saw Mrs. Marku at the police station and observed that her left cheek was swollen and red.

The Dismissal of the Evidence of the Appellant Based Upon Improper Judicial Notice and the Dismissal of the Evidence of Mrs. Marku [ 26 ] The appellant submits that the trial judge erred in law by dismissing the evidence of the appellant by taking improper judicial notice that it was "neither realistic nor believable" for the accused to reach over while driving to shut the door of his car based upon a finding that a Camry "was not a compact car". [ 27 ] Furthermore, the appellant submits that the trial judge erred in law by dismissing the evidence of Mrs.

Marku. [ 28 ] Both issues are improperly framed as issues of law rather than issues of credibility. The Evidence of Mr. Marku [ 29 ] The trial judge rejected the testimony of the appellant because she found that it changed several times and was not realistic or believable. [ 30 ] As noted above, the appellant has improperly framed the issue as a question of law based upon the comments by the trial judge that she took judicial notice of the fact that Mr.

Marku could not reach over and close the passenger door while driving because the distance to the passenger door was too great to allow him to do so observing that the Camry he was driving was not a compact car. [ 31 ] The appellant testified that, while on Highway 417 he reached over and closed the passenger door. The trial judge did not believe the appellant on this issue stating: "[h]e said that (Mr. Marku), on the 417, he reached over and closed the door.

I do not believe this and in fact, I think it is an impossible thing to occur when you are on the Queensway at speed of approximately 100 kilometres to reach over in a Camry and close the door… Firstly, I will say this right now that, it is neither realistic nor believable to accept the accused's version of driving a Camry, which is not a compact car, and while driving, to reach over a passenger and close the front door. That affects his credibility in a significant way. In my view, it is simply not possible while you are driving a car to reach over in front of another person and pull a door shut.

It affects his credibility and he is disbelieved on that point." [ 32 ] There are several other instances where the trial judge found that the appellant gave contradictory evidence which caused her to conclude that his testimony was not believable. [ 33 ] For example, with respect to questions as to who opened the car door, the evidence of the appellant shifted from saying he didn't know who opened the door to stating that his wife opened the door for reasons unknown to him and then to her opening the door because she wanted to hurt herself. The Evidence of Mrs. Marku [ 34 ] The trial judge found that Mrs.

Marku demonstrated a bias and "coloured" her evidence based upon her desire to protect her husband particularly given the affect a criminal conviction would have on his ability to become a Canadian citizen. [ 35 ] In her reasons, the trial judge found that "[t]here are weaknesses in the evidence of the accused and the complainant, and very strong evidence by the Crown from the independent civilians" [Transcript, volume 2 p. 41]. [ 36 ] With respect to the evidence of the appellant and his wife, the trial judge's conclusion to dismiss their testimony are matters of credibility and common sense and my examination of the record reveals no error in law or in principle or a manifest error in the

appreciation of the evidence to justify interference. [37] Credibility issues are questions of fact not law, and are to be left to the common sense of the trier of fact.

Unless the recordreveals a "clear and manifest error in the appreciation of the evidence, a court of appeal should not intervene in that determination": R. v.C. (R.) [R.C.], [1993] 2 S.C.R. 61. [38] Furthermore, it is perfectly acceptable for a trier of fact to accept part of the testimony of a witness and reject some of it.Accordingly, an appeal court cannot conclude from the mere presence of contradictory details in the testimony of a witness that a verdictfounded upon acceptance of a portion of the testimony of the witness is unreasonable: R. v. François (SCC), [1994] 2S.C.R. 827.

Is the Verdict Unreasonable and Unsupported by the Evidence? Did the Trial Judge Misapprehend the Evidence Resulting in an Unreasonable Verdict or Miscarriage of Justice? [39] The Ontario Court of Appeal has stated in R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (Ont. C.A.),at para. 83, a miscarriage of the evidence may refer to the failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence, or a failure to give proper effect to the evidence. [40] A misapprehension of the evidence is not to be confused with what are simply different

interpretations of the evidence thanthose adopted by a trial judge: R. v. Lee, 2010 SCC 52 , [2010] 3 S.C.R. 99. [41] At the heart of this issue is the assessment of whether any misapprehension of the evidence renders a trial unfair. If so, aconviction must be quashed: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (Ont. C.A.) at paras. 92 and 93. [42] The appellant alleges that, on several occasions the trial judge misapprehended the evidence. In my view the trial judge didnot misapprehend the evidence.

In all cases the trial judge either found the testimony of the appellant and his wife to not be credible orchose to interpret the evidence in a fundamentally different fashion. Did the Trial Judge Err by Failing to Give Coherent Reasons For Not Accepting the Evidence of Mrs. Marku as Raising AReasonable Doubt or Provide Coherent Reasons? [43] Appellate courts are required to give deference to trial judges facing crowded dockets and pressed with time. The essential testis whether the reasons are sufficient to allow a reviewing court to assess the correctness of the trial decision. R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. [44] In the words of Chief Justice McLachlin in R. v. Burns, (SCC), [1994] 1 S.C.R. 656, at 664: Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis forallowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does notgive reasons for deciding one way or the other on problematic points: see R. v. Smith, (SCC), [1990] 1 S.C.R. 991,affirming (1989), 1989 ABCA 187 , 95 A.R. 304, and Macdonald v.

The Queen, (SCC), [1977] 2 S.C.R. 665.The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judgerequired to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things doesnot, in itself, permit a court of appeal to set aside the verdict. This rule makes good sense. To require trial judges charged with heavycaseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably.

Trialjudges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and theseconclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects ofthe case. [45] The reasons delivered by the trial judge meet the test set out above.

The conclusions reached are supported by the evidenceand demonstrate a consideration and appreciation of the frailties of the evidence of both the appellant and the complainant, his wife. [46] As stated above in Biniaris, trial judges must be accorded "…considerable leeway in their appreciation of the evidence andthe proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment ofwhether the Crown's case is made out, and overall beyond a reasonable doubt".

Conclusion [47] My review of all of the evidence, including that of the appellant and his wife, indicates that there was ample evidence at trialthat is reasonably capable of supporting the trial judge's conclusion that the appellant had assaulted his wife and that the verdict is onethat a properly instructed jury, acting judicially, could have rendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168; R. v.Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381; R. v.

Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190. [48] The appellant has not satisfied the onus placed upon him to demonstrate that there has been an error of law, that the verdict ofthe trial judge is unreasonable, cannot be supported by the evidence or in principle, or that there has been a manifest error in theappreciation of the evidence resulting in a miscarriage of justice. [49] For the reasons set out above, the appeal is dismissed.

Justice Patrick Smith Released: 2013/06/27 CITATION : R. v. Marku, 2013 ONSC 4367 COURT FILE NO.: 11-6613 DATE: 2013/06/27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – VLADIMIR MARKU Appellant REASONS FOR JUDGMENT Justice Patrick Smith Released: 2013/06/27